On Partial Judgment

Final judgement can be divided into two kinds, complete judgement and partialjudgement, taking whether the judgement could end the whole case as the standard. Partialjudgement is a final judgement which is made out towards the independent part of thesubject-matter. When a complex case couldn’t find out all the facts during the trial period orin the short-term, but a part of facts is quite clear, there comes the problem that how toensure that the party could gain the judgement timely without postpone. Then, partialjudgement is designed to sovle this problem. There are legislation and practice in Germany,Japan, Taiwan, and France where systematic mode of general appliance of partial judgementis formed. In China, partial judgement is the same as advanced judgement. Article139of theCivil Procedure Law of PRC stipulates the partial judgement. But the provision is so vaguethat the court seldom make it into practice. However, the process value of partialjudgement-timeliness and finality, shouldn’t be denied because of the defects of its programdesign. On contrary, we should learn from the reasonable parts of other countries and regions,and also take into account of the characteristics of our civil litigation system, to perfect thesystem of partial judgement in China.This article is devided into introduction, the main part and conclusion part, with the mainpart including four parts.The preface begins with the common phenomenon in civil judicial practice and thenpoint out the value and significance of partial judgement, together with the basic ideas of thisarticle.The first part of the main part contains the analysis of the basic concepts. From thedefinition of adjudication and the classification of judgement, there leads to the concept ofpartial judgement. The connotation of partial judgement is determined through thesummarization of its characteristics which is consist of finality, patial, and independent. According to theory of process value of Robert S.Summers, the value of partial judgementbase on timeliness and finality. The extension of partial judgement is cleared by itscomparison with related systems such as interim judgement, partial claimst, intermediateconfirmative judgment, and summary judgement. The comparison will pay attention to somespecial design of the systems in some countries.The second part focuses on the appliance of partial judgement. The comparative analysisof the system in Germany, Japan, and Taiwan draws out the the elements, procedures andeffect of applying partial judgement. And the systematic mode of general appliance of partialjudgement is summarized. The appliance of partial judgement should fits two elements, theindependent part of the subject-matter and the ripe time to judge. In the procedure of applyingpartial judgement, who makes out the judgement, what the judgement is about and how torelief if improper appliance is made are discussed. The partial judgement make this part of thetrail separate from the last part and its effect is the same as an final judgement. Besides, thispart of the article still researches whether appliance of partial judgement is permitted underspecial forms of litigation and the connection between partial judgement and addedjudgement.The third part is mainly about the situation in our country. Existing problems and thereasons will be shown from the analysis of legislation history, theoretical study and practice.Basing on these analysis, in combination with our civil procedure system, the ideas ofperfecting partial judgement are put forward. The problem that the object of the judgement isnot clear exists in our present legislation. When it comes to theoretical study, there is theconfuse of partial judgement and advanced judgement, and the study is always limited to thelevel of concept definition, lacking further discussion. In practice, partial judgement seldomused not only because of the vague legislation and the lack of theoretical reference, but alsodues to its own defects including the possibility of cross-level trial, contradictory decisionsand improper appliance.The forth part presents the construction of improving partial judgment in China. Toperfect the system of partial judgement, the object of the judgement should be made clear. The powers and duties of the judges should be comprehensively regulated from authorized norms,prohibitive norms and compulsory norms. And make sure that the judges are charged with theobligation to cohabitancy. Operational design should cover the production of writtenjudgement, the treatment of the last part and relief measures. In addition, to improve partialjudgement in our country, the relationship of partial judgement and advanced enforcementshould adverted. The way of starting partial judgement needs further deliberation. And theinstitutional problems require solutions.